EPA Policy Restoring Public Right to Know About Chemical Hazards Wins Strong Support from Health, Labor and Environmental Advocates

 Twenty-six health, labor and environmental organizations filed detailed comments voicing resounding support for a long-overdue change in a U.S. Environmental Protection Agency (EPA) policy that denied public access to information EPA receives from the chemical industry. That policy and the resulting Agency practice had allowed chemical companies routinely to mask the identity of chemicals when submitting information to the agency about known health and safety impacts.

“EPA’s move brings us toward an age of greater transparency and helps give people the power to make safer choices about what products to bring into their home,” said Earthjustice attorney Marianne Engelman Lado. “If a chemical is known or suspected to be causing cancer or other serious diseases, at the very minimum, the public should be able to find out the name of that chemical. Although it’s the law, in the past it wasn’t the practice.”

The groups’ filing comes as Congress considers legislation that would overhaul the Toxic Substances Control Act (TSCA), the 1976 law that EPA, health, labor and environmental groups, and even the chemical industry agree has not adequately protected the public from toxic chemicals. EPA Administrator Lisa Jackson has declared enhancing chemical safety to be one of her priorities, and announced the agency’s new right-to-know policy in late May. At that time EPA signaled its intent to deny industry claims seeking to withhold the names of chemicals when submitting health and safety data to the Agency. EPA announced that it will not only deny future claims, but will review and challenge such claims made in the past.

“One of the few positive provisions of TSCA is that it clearly puts chemical health and safety data off-limits for protection as confidential business information,” said Dr. Richard A. Denison, senior scientist with the Environmental Defense Fund. “Despite this, chemical companies have as a matter of course claimed the identity of the chemical in question to be confidential even when providing EPA data indicating a chemical presents a substantial risk – yielding the perverse outcome that the public learns only that some unnamed chemical may be dangerous.”

One provision of current law requires chemical companies to submit to EPA any studies or data they obtain that indicate a chemical presents a substantial risk to the public or the environment. According to EPA, the identities of more than 40 percent of the hundreds of chemicals covered by reports submitted in fiscal years 2006 through 2009 have been claimed secret.

On the rare occasions in the past when EPA has reviewed such claims, it has uniformly found they do not actually qualify for protection after all. Yet EPA’s only recourse is to challenge those claims one by one – a highly resource-intensive activity that has hamstrung EPA officials. EPA officials have noted that they review an average of only 14 of the thousands of secrecy claims made under TSCA annually. EPA’s new policy puts companies on notice that they should not make those claims, and that they will be denied except in very rare cases.

“Communities of color and low-income communities are particularly at risk from toxic chemicals,” said Dr. Mark Mitchell, President of the Connecticut Coalition for Environmental Justice. “Public access to all available health information on chemicals is critical to our communities’ ability to inform and protect ourselves from the disproportionately high exposures to such chemicals that we experience.”

In their comments, the groups urged EPA to take several additional steps in implementing the new policy, including that

  • EPA should implement a system for tracking and publicly reporting the status of all reviewed and challenged claims and should provide that information on EPA’s website in a timely manner.
  • In reviewing past claims, EPA should prioritize review of claims for chemicals for which available information indicate cause for concern as to hazard or exposure potential.
  • Where EPA determines that a chemical’s identity is not entitled to protection in the context of a health and safety study, it should also remove any such protection for that chemical in the context of its listing on the TSCA Inventory.
  • EPA should require the recertification of CBI claims after no more than five years and not allow information to be withheld from the public indefinitely without substantiation.

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